Opinion
FSTCV076000797S
04-05-2017
JP Morgan Chase Bank, Successor in Interest et al. v. Dean Gianopoulos et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS DATED DECEMBER 16, 2012 (#174.00)
Hon. Kevin Tierney, Judge Trial Referee.
Despite a return day of December 25, 2007 in this residential foreclosure action and a December 16, 2012 Motion to Dismiss filed almost five years later with over a four-year delay before its assignment before a Judge of the Superior Court, this court has before it a claim by the defendant of lack of subject matter jurisdiction. The Motion to Dismiss claims " that the plaintiff is not the true owner of the mortgage note, as particularly set forth in defendant's accompanying memorandum of law." The defendant is attacking the standing of the plaintiff to commence and to continue to litigate this residential foreclosure action.
Without restating those precepts, the court has applied the rules relating to standing and lack of subject matter jurisdiction in foreclosure actions in considering the motion to dismiss before this court. JP Morgan Chase Bank, National Association v. Simoulidis, 161 Conn.App. 133, 142-46, 126 A.3d 1098 (2005), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016).
" Standing requires no more than a colorable claim of injury; a party ordinarily establishes . . . standing by allegations of injuries." Elec. Contrs., Inc. v. Dep't of Educ., 303 Conn. 402, 35 A.3d 188 (2012). " The plaintiff ultimately bears the burden of establishing standing." Wells Fargo Bank, NA v. Strong, 149 Conn.App. 384, 398, 89 A.3d 392 (2014). " Once the plaintiff establishes standing, it is the defendant's burden of proof to establish facts that show this court has a lack of subject matter jurisdiction by proving the other claims set forth in the motion to dismiss. Defendant's standard of proof in that regard is the civil standard of proof; fair preponderance of the evidence." Deutsche Bank Nat'l Trust Co. v. Juchniewich, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 16-6028759 S, (February 27, 2017, Tierney, J.T.R.).
The plaintiff proceeded at the January 31, 2017 hearing on the Motion to Dismiss by offering the note, the mortgage and an assignment of mortgage. The blue ink June 26, 2001 Note in the face amount of $487, 500 by Dean Gianopoulos a/k/a Constantine Gianopoulos as the borrower and Nation's Standard Mortgage Corp. as the lender was presented to this court for examination. A photocopy of the Note was marked as Ex. 1. Both the blue ink and the photocopy contained a blank undated endorsement that stated:
Pay to the order of
Without Recourse
Nation's Standard Mortgage Corp
Kathryn Williams Vice President.
There was a signature above the printed line above Kathryn Williams's name. The presentation of the blue ink promissory note and the copy marked in evidence satisfies this court's examination obligations. Equity One, Inc. v. Shivers, 310 Conn. 119, 124-25, 74 A.3d 1225 (2013); Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 43-44, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).
Exhibit 2 is a certified copy of the Open-End Mortgage Deed to the lender for the $487, 500 note secured by the real property at 41 Fishing Trail, Stamford, Connecticut.
Exhibit 3 is a certified copy of an Assignment of Mortgage dated June 26, 2001 from Nation's Standard Mortgage Corp. to JP Morgan Chase Bank, successor in interest to Bank One, National Association, as Trustee, on behalf of the holders of FNT Mortgage-Backed Pass-Through Certificates, Series FNT 2001-4, the full name of the original plaintiff recorded in the Stamford Land Records at Book 9257 at Page 177. The full name of JP Morgan Chase Bank, was filled out on the right hand margin in ink. Regardless of that fact, the certification flag states that this is the Assignment of Mortgage that is recorded on the land records. Thus the court found that Exhibit 3 was duly authenticated and admissible as a full exhibit. It assigned both the note and the mortgage. The Return of Service in the court file is dated December 10, 2007. The court finds that the original plaintiff had possession of the note at the commencement of this foreclosure action, which action began on December 10, 2007.
The plaintiff then claimed that it had made out a prima facie case. Deutsche Bank Nat'l Trust Co. v. Cornelius, 170 Conn.App. 104, 114 (2017). The court agreed that the plaintiff has sustained its prima facie burden of proof to show subject matter jurisdiction in the first instance. U.S. Bank, National Association, Trustee v. Schaeffer, 160 Conn.App. 138, 150, 125 A.3d 262 (2015). The burden now shifts to the defendant to prove each and every issue stated within their motion to dismiss. " That presumption may be rebutted by the defending party, but the burden is on the defending party to provide sufficient proof that the holder of the note is not the owner of the debt, for example, by showing that ownership of the debt had passed to another party. It is not sufficient to provide that proof, however, merely by pointing to some documentary lacuna in the chain of title that might give rise to the possibility that some other party owns the debt. In order to rebut the presumption, the defendant must prove that someone else is the owner of the note and debt. Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note." U.S. Bank National Association v. Schaeffer, supra, 160 Conn.App. 150.
The defendant then produced for the court's consideration a number of documents. The first document was the operative complaint, which is the original one-count December 7, 2007 complaint. The court took judicial notice of all 29 pages of the complaint of which six pages would be commonly known as the complaint and the remaining documents being those that would normally accompany a foreclosure complaint. A copy of the Note and Open-End Mortgage Deed are included in those 29 pages. The second document that the court took judicial notice of at the request of the defendant was the December 15, 2016 Motion to Substitute Plaintiff (#178.00), which motion was argued contemporaneously with this instant Motion to Dismiss on January 31, 2017. It is a three-page document. The third document was the plaintiff's January 20, 2017 Memorandum of Law in Support of Motion to Substitute Plaintiff (#185.00). The defendant also offered plaintiff's December 15, 2016 Memorandum of Law in Support of Motion to Substitute Plaintiff (#179.00). That contains the following quote: " In this case, JP Morgan Chase Bank was mistakenly named as the current Trustee . . ." (#179.00, Page 4). The court took judicial notice of these two pleadings.
The plaintiff in rebuttal requested the court to take judicial notice of the entire seven pages of the Memorandum (#185.00). The plaintiff offered a certified copy of the Assignment of Mortgage dated November 16, 2016 from JP Morgan et al. to the U.S. Bank et al. the requested substituted party. Ex. 4. The court took judicial notice of both pleadings as requested. Both parties rested without offering any further documents testimony or requesting further judicial notice of any documents. Both parties waived the offer of testimony by any witnesses. No post-hearing briefs were ordered. The plaintiff furnished oral argument at the hearing.
The court has carefully examined each of the documents. It appears to this court that an error could have been made by someone or some entity in the preparation and execution of the June 26, 2001 Assignment of Mortgage. Ex. 3. In addition JP Morgan Chase Bank is no longer the owner and holder of this note. That status has been conveyed to U.S. Bank et al. with a new Assignment of Mortgage to correct that fact. Ex. 4.
The court finds that the original plaintiff in this foreclosure lawsuit was " JP Morgan Chase Bank, successor in interest to Bank One, National Association, as trustee, on behalf of the holders of FNT Mortgage-Backed Pass-Through Certificates, Series FNT 2001-4." See Summons-Civil in the court file. See the original complaint dated December 7, 2007 in the court file. The lender was Nation's Standard Mortgage Corp. Ex. 1. On June 26, 2001 the lender assigned the note and mortgage to JP Morgan Chase Bank as named in the first sentence of this paragraph. Ex. 3. Although part of the assignee's name is printed in ink, the full correct name of the original plaintiff is set forth in the June 26, 2001 Assignment of Mortgage as the assignee. The Motion to Substitute Plaintiff dated December 15, 2016 (#178.00) argued before this court at the same January 31, 2007 hearing, is named exactly as the original plaintiff in that motion as the moving party. The only difference in the two names from the Summons-Civil and the Motion to Substitute Plaintiff are; (1) " Holders" vs. " holders, " (2) " Successor" vs. " successor, " (3) " Interest" vs. " interest"; (4) " Trustee" vs. " trustee" (5) " Behalf" vs. " behalf" and (6) one misspelling " Banked" vs. " Backed." Simple misspellings and the above differences cannot deprive this court of subject matter jurisdiction and are the epitome of a " circumstantial defect." Gen. Stat. § 53-123.
The original plaintiff now claims that the substitute plaintiff should be: " U.S. Bank National Association, as Trustee, Successor in Interest to JP Morgan Chase Bank, Successor in Interest to Bank One, National Association, as Trustee, on Behalf of the Holders of FNT Mortgage-Banked Pass-Through Certificates, Series FNT 2001-4." This court notes the possible repeated misspelling of " Backed" as " Banked." In order to resolve, whether or not, there was such a misspelling, this court accessed www.secinfo.com/d1z2h.3Dd.htm. This Securities and Exchange Commission (SEC) governmental website revealed the correct name of the entity in a duly filed Form 10-K. The correct spelling is " Backed." The court will treat the correct spelling of the word as " Backed." Either party may file a timely motion to reargue on this spelling issue which this court will grant so that the duly authorized SEC documents can be presented to the court for examination.
The defendant claims that this court lacks subject matter jurisdiction and that the lack of jurisdiction cannot be cured by the substitution of a new plaintiff or a correction of the plaintiff's name. He cites for support Wilson v. Zemba, 49 Conn.Supp. 542 (2004) , and Salem Five Mortg. Co., LLC v. Afsary, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 12-6013158 S (June 26, 2014, Mintz, J.) [58 Conn.L.Rptr. 484, ].
In Wilson v. Zemba, the father as the plaintiff brought this action for tortious damages that occurred to his minor son. The action was not brought by the father as next friend of the minor son. The defendant filed a Motion to Dismiss which was met by the plaintiff's Motion to Substitute the son as plaintiff. Despite this Motion to Substitute, the defendant argued that the court had no subject matter jurisdiction of this lawsuit due to the incorrect name of the original plaintiff. The trial court assumed a lack of subject matter jurisdiction but avoided the dismissal by granting the Motion to Substitute the proper party as plaintiff. Citing Gen. Stat. § 52-109 and Judge Sheldon's trial court decision in DiLieto v. County Obstetrics and Gynecology Group, P.C. (" for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs"), the trial court in Wilson granted the Motion to Substitute and denied the Motion to Dismiss. The court finds that the holding and analysis of Wilson v. Zemba is favorable to the plaintiff.
Judge Mintz denied the defendant's Motion to Dismiss in Salem Five Mortgage Company, LLC v. Afsary, on June 26, 2014 finding that the granting of the Motion to Substitute the plaintiff cured whatever defect that existed in the original plaintiff's name citing Gen. Stat. § 52-109, Wilson v. Zemba and the Supreme Court decision in DiLieto at 297 Conn. 105, 151, 998 A.2d 730 (2010). Again, Salem Five Mortgage Company, LLC v. Afsary is helpful to the plaintiff.
The plaintiff argues that statutory and appellant authority permits the substitution even if there is an error. Gen. Stat. § 52-109 as well as Gen. Stat. § 52-123 set forth the liberality with which substitution should be made in the case of a scrivener's type error. Furthermore, the substitution relates back to the commencement of the lawsuit correcting any possible claim of lack of subject matter jurisdiction. Fairfield Merrittview Limited Partnership v. Norwalk, 320 Conn. 535, 552-53, 133 A.3d 140 (2016); Dilieto v. County Obstetrics and Gynecology Group, P.C., 297 Conn. 105, 151, 998 A.2d 730 (2010).
" [R]emedial statutes such as [§ 52-109] were intended to soften the otherwise harsh consequences of strict construction under the common law: Over-technical formal requirements have ever been a problem of the common law, leading [legislative bodies] at periodic intervals to enact statutes . . . [that], in substance, told the courts to be reasonable in their search for technical perfection." (Citation omitted; internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 151, 998 A.2d 730 (2010), aff'd and rev'd on other grounds, 310 Conn. 38, 74 A.3d 1212 (2013).
This court has explained that § 52-109 " allow[s] a substituted plaintiff to enter a case [w]hen any action has been commenced in the name of the wrong person as [the] plaintiff, " and that such a substitution will " relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 150, 998 A.2d 730 (2010). Thus, a " substitution of a real party in interest as the plaintiff cures the lack of standing of the original plaintiff"; Kortner v. Martise, 312 Conn. 1, 13, 91 A.3d 412 (2014); and, further, is permissible even " after the statute of limitations has run." (Internal quotation marks omitted.) Id., at 13-14, 91 A.3d 412. An addition or substitution is discretionary, but generally should be allowed when, due to an error, misunderstanding or misconception, an action was commenced in the name of the wrong party, instead of the real party in interest, whose presence is required for a determination of the matter in dispute. General Statutes § 52-109.Fairfield Merrittview Limited Partnership v. Norwalk, supra, 320 Conn. 552-53.
This court finds that an order of substitution of a party plaintiff will relate back to the commencement of the lawsuit and it will correct any possible claim of lack of naming of the proper party. Dilieto v. County Obstetrics and Gynecology Group, P.C., supra, 297 Conn. 150. The court has before it a properly filed December 15, 2016 Motion to Substitute Plaintiff (#178.00), which was the other motion heard at the January 31, 2017 hearing in which both parties participated.
Even if the motion to substitute plaintiff is granted, the substitute plaintiff still has the obligation to establish subject matter jurisdiction and that the original plaintiff possessed the note as of the date of the commencement of this foreclosure action. Deutsche Bank National Trust Company, Trustee v. Thompson, 163 Conn.App. 827, 829, 136 A.3d 1277 (2016).
Our appellate courts have approved the granting of amendments of the pleadings in favor of a pending motion to dismiss, in order to preserve the plaintiff's right to trial. Coppola v. Coppola, 243 Conn. 657, 667, 707 A.2d 281 (1998); Concept Associates, Ltd v. Board of Tax Review, 229 Conn. 618, 619-20, 642 A.2d 1186 (1994).
The court finds that the original plaintiff was the proper party to commence this litigation and remains a proper party. The original plaintiff has standing. The court is not deprived of subject matter jurisdiction by any circumstantial defects and/or scrivener's error in the name of the various parties.
The defendant's Motion to Dismiss dated December 16, 2017 (#174.00) is hereby denied.
The court will now consider the plaintiff's December 15, 2016 Motion to Substitute Plaintiff (#178.00), which was argued and submitted to this court by the parties on January 31, 2017. The court intends to grant the plaintiff's December 16, 2017 Motion to Substitute Plaintiff (#178.00).